i i i i i i
OPINION
No. 04-07-00220-CR
Marvin WEBB, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 04-11-215-CRW Honorable Donna S. Rayes, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice
Delivered and Filed: June 4, 2008
AFFIRMED
Marvin Webb was charged by way of a two-count indictment with the offenses of
manufacturing of a controlled substance and possession of precursor materials with intent to
manufacture a controlled substance. Webb waived his right to a jury trial and the trial court found
him guilty on both counts. On appeal, Webb argues that: 1) the trial court erred by proceeding to
trial on the second count without first securing a plea from him; 2) he received multiple punishments
for the same conduct in violation of the Double Jeopardy Clause; and 3) the evidence is factually 04-07-00220-CR
insufficient to support his conviction for the offense of manufacturing a controlled substance. We
overrule Webb’s issues and affirm the judgment of the trial court.
1. The indictment charged Webb with knowingly manufacturing methamphetamine in an
amount of four grams or more but less than 200 grams (Count I), and possessing an immediate
precursor, namely ephedrine or pseudoephedrine, iodine, acetone, lye, and charcoal lighter fluid, with
intent to manufacture methamphetamine (Count II). Webb first argues that the trial court erred in
proceeding to trial on Count II of the indictment—and subsequently entering a finding of guilty on
that count—because he never entered a plea on Count II, and hence the issue of his guilt on Count
II was never joined. The following exchange occurred after Webb waived his right to a jury trial:
Trial court: Calling Cause No. 04-11-00215, State of Texas v. Marvin Webb. Is the State ready? Prosecution: The State is ready. Trial court: Defense ready? Defense: Ready, Your Honor. Trial court: [Defense counsel], does Mr. Webb wish to have the indictment read or is he willing to waive the reading of the indictment? Defense: We’ll waive the reading of the indictment, Your Honor. We’ve reviewed it and waive the reading. Trial court: All right. Mr. Webb, please stand. To the offense as alleged in the indictment, manufacture of a controlled substance[,] methamphetamine, how do you plead? Webb: Not guilty. Trial court: You may be seated.
Without objection by Webb, the trial then proceeded through the evidentiary phase and
concluded with the trial court finding that the evidence supported Webb’s guilt as to the offense of
“manufacture of a controlled substance, methamphetamine.” At the conclusion of the punishment
phase, the trial court found Webb guilty of both counts as alleged in the indictment and sentenced
him to 30 years’ confinement on Count I and 20 years’ confinement on Count II, the sentences to run
concurrently.
-2- 04-07-00220-CR
For the first time, Webb now argues on appeal that the absence of a plea to Count II
constitutes a violation of articles 27.021 and 27.162 of the Texas Code of Criminal Procedure. See
TEX . CODE CRIM . PROC. ANN . art. 27.02(4) (Vernon 2006); art 27.16(a) (Vernon 2006). Webb relies
on Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. 1981), to support his position that “[u]ntil
the indictment is read and a plea is entered the issue is not joined between the State and the accused
before the jury.” However, in Peltier, the defendant’s conviction was reversed because at the
guilt/innocence phase, the indictment was not read and the defendant did not enter his plea in the
presence of the jury, in violation of article 36.01, and the defendant brought the error to the trial
court’s attention in a motion for new trial. Peltier, 626 S.W.2d at 30-31; TEX . CODE CRIM . PROC.
ANN . art. 36.01(a)(1), (2) (Vernon 2007) (requiring that indictment be read and plea entered in jury’s
presence). The rationale for the rule requiring the reading of the indictment and entry of a plea
before the jury is to inform the defendant and the jury of the charges at issue, and to allow the jury
to hear the defendant admit or refute the charges. See Martinez v. State, 155 S.W.3d 491, 495 (Tex.
App.—San Antonio 2004, no pet.) (“Without the reading of the indictment and the entering of a plea,
no issue is joined upon which to try.”). A timely objection to afford the trial court an opportunity
to cure the defect is required to preserve error. Id.; Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim.
App. 1997). When the error is discovered after trial, error may be preserved through a motion for
new trial, bill of exception, or motion to arrest judgment. Warren v. State, 693 S.W.2d 414, 416
1 “The pleadings and motions of the defendant shall be: (4) a plea of not guilty.” T EX . C O D E C RIM . P RO C . A N N . art. 27.02(4) (Vernon 2006).
2 “The plea of not guilty may be made orally by the defendant or by his counsel in open court. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court.” T EX . C O D E C RIM . P RO C . A N N . art 27.16(a) (Vernon 2006).
-3- 04-07-00220-CR
(Tex. Crim. App. 1985); Martinez, 155 S.W.3d at 495. Here, Webb did not object during trial to the
trial court’s failure to secure his plea to Count II, and did not raise the issue in a post-trial motion;
therefore, error was not preserved. See Lee v. State, 239 S.W.3d 873, 876 (Tex. App.—Waco 2007,
pet. ref’d) (holding that an objection is required to preserve an article 36.01 complaint).
Accordingly, Webb’s first issue is overruled.
2. Next, Webb contends he was assessed multiple punishments for the same offense in
violation of the Double Jeopardy Clause of the Fifth Amendment. See North Carolina v. Pearce,
395 U.S. 711, 717 (1969) (the Fifth Amendment guarantee against double jeopardy protects against
multiple punishments for the “same offense”). The indictment charged Webb with two counts as
follows:
Count I Knowingly manufacture, by the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, a controlled substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams;
Count II With intent to unlawfully manufacture a controlled substance, namely methamphetamine, possess an immediate precursor, to wit: ephedrine or pseudoephedrine, iodine, acetone, lye, and charcoal lighter fluid; . . .
Webb argues that the precursor chemicals that formed the basis for his conviction under Count II
were possessed as part of a course of action engaged in to manufacture methamphetamine, which
resulted in his conviction under Count I; thus, the conviction under Count II was a second conviction
for the same conduct. In support, Webb relies on Lopez v. State, in which the court held that double
jeopardy barred the defendant’s convictions for both delivery of cocaine and possession of the same
-4- 04-07-00220-CR
quantity of cocaine with intent to deliver. See Lopez v. State, 108 S.W.3d 293, 299 (Tex. Crim. App.
2003).
We find Lopez distinguishable and disagree that Webb received multiple punishments for
the same offense in violation of double jeopardy. In Lopez, the defendant was punished for distinct
steps in a single drug transaction that flowed from one “original impulse.” Id. at 297-301 (holding
that defendant charged with violation of section 481.112 of the Health and Safety Code cannot be
punished more than once for manufacturing, possessing, and delivering the same single cache of
drugs) (emphasis ours). Here, however, two different “impulses” were involved. Offense one,
manufacturing of methamphetamine, was completed when methamphetamine was manufactured on
the premises controlled by Webb, as evidenced by the cache of drugs seized during the search of
Webb’s shop. Offense two, possession of precursor materials with intent to manufacture
methamphetamine, was completed when precursor materials were seized at Webb’s shop, indicating
Webb’s ability to subsequently manufacture a separate batch of methamphetamine. See United
States v. Anderson, 987 F.2d 251, 255 (5th Cir.), cert. denied, 510 U.S. 853 (1993) (affirming
separate convictions for the offenses of manufacturing methamphetamine and attempting to
manufacture methamphetamine where evidence showed offenses were factually distinct because they
were based on different batches of methamphetamine); see also Toro v. State, 780 S.W.2d 510, 512
(Tex. App.—San Antonio 1989, no pet.) (holding double jeopardy does not bar prosecution for
distinct possession and delivery offenses where separate drug quantities are identified for each
offense). Because possession of the precursor materials gave Webb the ability to manufacture a new
batch of methamphetamine, a “new bargain” existed for which he could be punished. See Lopez, 108
S.W.3d at 301. We conclude that Webb engaged in two individual, separate acts that the Legislature
-5- 04-07-00220-CR
has made subject to separate prosecutions and separate punishments. Accordingly, Webb did not
receive multiple punishments for the same offense and his second issue is overruled.
3. Finally, Webb maintains the evidence is factually insufficient to support his conviction
for the offense of manufacturing methamphetamine under Count I of the indictment. In evaluating
factual sufficiency, we review all of the evidence in a neutral light, and set aside the jury’s verdict
only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the
verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must
remain mindful that the jury is the sole judge of the credibility of the witnesses, and may choose to
believe all, some, or none of a witness’s testimony. Cain, 958 S.W.2d at 407 n.5. Under the first
prong, we may not conclude the verdict is “clearly wrong” or “manifestly unjust” simply because,
based on the quantum of evidence admitted, we would have rendered a different verdict. Watson v.
State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Similarly, under the second prong, we may not
conclude that a conflict in the evidence requires a new trial simply because we disagree with the
jury’s resolution of the conflict—the great weight and preponderance of the evidence must contradict
the jury’s verdict before we may reverse on that basis. Id. When addressing factual sufficiency, we
must include a discussion of the most important and relevant evidence that supports the appellant’s
complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Mullins v. State,
173 S.W.3d 167, 173-74 (Tex. App.—Fort Worth 2005, no pet.).
To obtain a conviction on Count I, the State was required to prove that Webb knowingly
manufactured methamphetamine in an amount of four grams or more but less than 200 grams. See
TEX . HEALTH & SAFETY CODE ANN . § 481.112(a), (d) (Vernon 2003). To obtain a conviction for
-6- 04-07-00220-CR
the manufacture of a controlled substance, the State must link the defendant either to an interest in
the place where the manufacturing was taking place or to the actual act of manufacturing. Brown
v. State, No. 07-06-0087-CR, 2007 WL 1245842, at *3 (Tex. App.—Amarillo Apr. 30, 2007, pet.
ref’d) (mem. op.) (not designated for publication); East v. State, 722 S.W.2d 170, 172 (Tex.
App.—Fort Worth 1986, pet. ref’d).
Manufacturing can be established through circumstantial evidence. See McGoldrick v. State,
682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Although mere presence at a drug laboratory is
insufficient to support a conviction for manufacturing, it is a circumstance tending to prove guilt that,
when combined with other facts, shows that the accused was a participant in the manufacturing. See
Green v. State, 930 S.W.2d 655, 657 (Tex. App.—Fort Worth 1996, pet. ref’d). A link to
manufacturing exists when there is “evidence of possession of a drug lab on one’s premises
combined with evidence that the lab has been used on the premises to manufacture the drug alleged,
and in circumstances where the presence of the lab, because of its open location or odor or both, is
shown to have been known to the defendant.” East, 722 S.W.2d at 171-72.
At trial, two witnesses testified on behalf of the State and four witnesses, including Webb,
testified for the defense. Sandra Noll, a narcotics investigator, testified that an anonymous tip that
“somebody had been cooking meth all night at a motorcycle shop” led her to Webb’s business in
Wilson County. Upon arriving at the shop on a Sunday morning, Noll encountered Webb, Robert
Bishop, David Kozekwa, and Valerie Egert. Webb was at the back of the shop in an enclosed room.
Webb, the owner of the motorcycle shop, signed a consent to search form. During the search of the
premises, the following drug and non-drug evidence was photographed and collected from the back
of the shop: a bottle of Red Devil Lye; a coffee pot; coffee filters containing large white pills; a
-7- 04-07-00220-CR
Pyrex dish with white powder residue; razor blades; a metal screen filter; a light bulb converted into
a smoking pipe; a syringe; a metal pan containing matchsticks and coffee filters; and a coffee pot
containing sludge. Noll stated the coffee pot sludge was common when making methamphetamine.
In a Ford Bronco parked at the shop, Noll found a box containing a coffee pot, coffee filters,
hydrogen peroxide, Red Devil Lye, razor blades, a funnel, acetone, charcoal lighter fluid, a postal
scale, a glass skillet, and duct tape. In the work area of the shop, Noll seized a syringe and a beer
can that looked like it had been used to heat methamphetamine. In the grassy area about fifteen feet
from the back of the shop, Noll uncovered a digital scale and modified water hoses—segments of
rubber hose modified with tape and bottle tops—which Noll stated was commonly used to
manufacture methamphetamine. In a pickup truck located at the rear of the shop, Noll recovered a
bottle of Red Devil Lye and coffee filters. In the bedroom area, she recovered two bottles of Red
Devil Lye, a bottle of acetone, a 55-gallon barrel containing hundreds of matchbooks, a microwave
with a large amount of white residue splattered on the inside, and a hotplate. Prior to the search,
Bishop was arrested for possession of methamphetamine. After the search, Webb, Kozekwa, and
Egert were also arrested. Fingerprint evidence was not collected at the shop.
Joel Budge, a drug analyst for the Texas Department of Public Safety, testified that the
evidence taken from Webb’s shop indicated a methamphetamine manufacturing process called the
“red phosphorus iodine method.” Budge elaborated on the process used to manufacture
methamphetamine from ephedrine or pseudoephedrine, and noted that certain products are routinely
used in the process, including iodine, lye, segmented water hoses, razor blades, acetone, coffee
filters, hydrogen peroxide, charcoal lighter fluid, and red phosphorus from matchbooks. In relation
to the evidence seized at Webb’s shop, Budge stated that his tests revealed varying amounts of
-8- 04-07-00220-CR
methamphetamine on several items. Budge testified that in his expert opinion, the exhibits he
analyzed pertinent to this case were evidence of manufacturing methamphetamine. Budge further
opined that it was reasonably probable for a person working alone to complete the entire processing
and manufacturing of the amount of methamphetamine found at Webb’s shop in four to eight hours.
Webb testified that he began repairing motorcycles as a hobby, which then progressed to a
full-time repair job, along with fixing lawnmowers, building fences, and other odd jobs. He lived
with his sister, Scarlet Carpenter, who grew tired of the junk pile he had accumulated and stored at
her home. Carpenter found an old building down a back country road for Webb to rent and he used
it as a shop out of which to operate his repair business. Webb leased the shop for about a year before
he was arrested.
Webb testified that he met Robert Bishop a long time ago, but had been out of touch until
Bishop contacted him after Bishop was released from jail. Webb testified that he attempted to help
Bishop, who drank a lot, by allowing him to stay at the shop in a make-shift bedroom, rent-free.
There was not a bathroom or running water in the shop. Bishop avoided Webb during the day, and
Webb suspected that Bishop had parties at the shop during the night because the neighbors told him
that Bishop was loud and left behind messes. Webb stated that the day before the arrest, he had
decided that Bishop could no longer stay at the shop and had locked up the shop so that Bishop could
not enter. Just as Webb was about to leave with his sister, however, Bishop arrived, drunk, and
demanded his clothes. Webb decided to give Bishop one more chance and allowed him to enter to
get his clothing, but told him to stay no longer than five minutes. The next morning, Webb arrived
at the shop to find Bishop was still there, and it appeared that he had been drinking all night.
-9- 04-07-00220-CR
Webb testified that the lye seized during the search came from Bishop’s Bronco, which he
had assumed Bishop used to clean drains when working with his father on plumbing systems. Webb
stated that the acetone was used to clean motorcycles and that the charcoal lighter fluid was used to
light fires in the fireplace. Webb stated that he had no knowledge that methamphetamine was
manufactured at his business and that Bishop must have done it the day before the search while he
was gone.
David Kozekwa worked on motorcycles in the shop with Webb. Kozekwa testified that on
the day of the search, Bishop was at the shop before either he or Webb arrived, and he believed that
Bishop had been at the shop the entire night before the search. He stated that acetone was commonly
used in motorcycle repairs, and that he had not noticed any lye around the shop. Kozekwa stated that
he did not like the things Bishop was involved in, and that people often came to the shop looking
for Bishop. Amica Jo Chapa, custodian of records at the Wilson County jail, testified that Webb had
seventy cents on his person when processed into the jail on the day he was arrested. Chapa testified
that Bishop had $309.58 in cash on him the day he was arrested. Finally, Carpenter testified
regarding her dislike and distrust of Bishop.
Webb contends that the evidence does not prove that he manufactured methamphetamine;
rather, he posits that the evidence shows “the possibility of manufacturing by someone” at the shop,
“in all likelihood, Bishop.” We disagree and hold that the evidence is factually sufficient to support
Webb’s conviction under Count I of the indictment. The record contains sufficient evidence to
affirmatively link Webb to the manufacturing of methamphetamine inside his business. Webb
controlled the premises where the methamphetamine lab was discovered. See East, 722 S.W.2d at
171-72. He was the owner of the motorcycle shop and the lessee of the building. At the time of the
-10- 04-07-00220-CR
officers’ arrival, Webb was in the enclosed back room, where the methamphetamine lab was located.
The trial court, as fact finder, could have chosen to disbelieve Webb’s testimony that he was unaware
of the lab.
Moreover, the testimony regarding Bishop’s unsavory character does not mitigate Webb’s
guilt. The trial court could have discounted Webb’s theory that Bishop was the only participant in
the manufacturing, and instead relied on the testimony regarding the open location of the lab and
readily apparent materials in the shop to reach its verdict. Although there was no direct evidence
showing Webb was present during the manufacturing or that he knew there was methamphetamine
in his shop, we conclude that the trial court, as the trier of fact, could rationally infer and find beyond
a reasonable doubt that Webb manufactured methamphetamine. The verdict is not so against the
great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
Webb’s third issue is overruled.
The judgment of the trial court is affirmed.
Phylis J. Speedlin, Justice
PUBLISH
-11-